R. Viswanathan v. Rukn-ul-Mulk Syed Abdul Wajid, [(1963) 3 SCR 22]: Supreme Court of India
When is an action and judgement in rem and personam
Roman
lawyers recognised a right either as a jus in rem or a jus in personam.
According to its literal meaning “jus in rem” is a right in respect of a thing,
a “jus in personam” is a right against or in respect of a person. In modern
legal terminology a right in rem, postulates a duty to recognise the right
imposed upon all persons generally, a right in personam postulates a duty
imposed upon a determinate person or class of persons. A right in rem is
therefore protected against the world at large; a right in personam against
determinate individuals or persons. An action to enforce a jus in personam was
originally regarded as an action in personam and an action to enforce a jus in
rem was regarded as an action in rem. But in course of time, actions in rem and
actions in personam acquired different content. When in an action the rights
and interest of the parties themselves in the subject-matter are sought to be
determined, the action is in personam. The effect of such an action is
therefore merely to bind the parties thereto. Where the intervention of the
Court is sought for the adjudication of a right or title to property, not
merely as between the parties but against all persons generally, the action is
in rem. Such an action is one brought in the Admiralty Division of the High
Court possessing Admiralty jurisdiction by service of process against a ship or
cargo within jurisdiction. There is another sense in which an action in rem is
understood A proceeding in relation to personal status is
also treated as a proceeding in rem, for the judgment of the proper court
within the jurisdiction of which the parties are domiciled is by comity of
nations admitted to recognition by other courts. As observed by Cheshire in his
“Private International Law”, Sixth Edition at page 109, “In Roman law an action
in rem was one brought in order to vindicate a jus in rem, i.e., a right such
as ownership available against all persons, but the only action in rem known to
English law is that which lies in an Admiralty court against a particular res,
namely, a ship or some other res, such as cargo, associated with the ship.”
Dealing with judgments in rem and judgments in personam. Cheshire observed at
page 653, “It (judgment in rem) has been defined as a judgment of a court of
competent jurisdiction determining the status of a person or thing (as distinct
from the particular interest in it of a party to the litigation); and such a
judgment is conclusive evidence for and against all persons whether parties,
privies or strangers of the matter actually decided. …… A judgment in rem
settles the destiny of the res itself ‘and binds all persons claiming an
interest in the property inconsistent with the judgment even though pronounced
in their absence’; a judgment in personam, although it may concern a res,
merely determines the rights of the litigants inter se to the res.” (at pp.
43-44)
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